Citation Nr: 1335461 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-03 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for ischemic heart disease to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to February 1971. The issues of service connection for peripheral neuropathy, erectile dysfunction, hypogonadism, maxillary sinusitis, chronic lumbago, peripheral vascular disease and hyperlipidemia have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, a VA treatment note from September 2011 submitted by the Veteran contains a statement from the treating physician that Agent Orange related diseases may pertain to several conditions the Veteran has been diagnosed with including peripheral neuropathy, erectile dysfunction, hypogonadism, and hyperlipidemia. This statement was specifically circled by the Veteran. The same clinical note contains additional diagnoses of maxillary sinusitis, chronic lumbago, and peripheral vascular disease. The Board has interpreted this as a claim for benefits for all of the above listed conditions. As these issues have not been previously adjudicated by the AOJ the Board does not have jurisdiction over them, and they referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had active service in the Republic of Vietnam during the Vietnam War era and is presumed to have been exposed to herbicides. 2. The Veteran has not been diagnosed with ischemic heart disease at any point during the claim or appeal period. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1(k), 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that through a VCAA letter dated in March 2010 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of an award of the benefit being sought. The VCAA letter to the Veteran was provided in March 2010, prior to the initial unfavorable decision in April 2011. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See generally 38 C.F.R. § 3.159(c). The record in this case includes service treatment records, service personnel records, VA treatment records, a VA examination, and lay evidence. The Veteran has not reported receiving private treatment. Additionally, the Veteran scheduled a hearing before the Board but withdrew his request. The Veteran was provided a VA examination in April 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with the claims file, and the Veteran's history and complaints were recorded. The examination report sets forth detailed examination findings and diagnoses. As such, the examination report is adequate to decide the claim of service connection for ischemic heart disease. Furthermore, neither the Veteran nor his representative have challenged the adequacy of the examination. Thus, further examination is not necessary regarding the issue on appeal. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection In various written statements the Veteran contends that he is entitled to service connection for a heart condition, specifically ischemic heart disease, based upon exposure to herbicides during service in the Republic of Vietnam. Service connection can be granted on a presumptive basis for certain diseases when a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), ischemic heart disease (including coronary artery disease), all chronic B-cell leukemias, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note (3). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See 68 Fed. Reg. 27, 630 (May 20, 2003). The Veteran's DD 214 reflects that he was a combat veteran who served in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicides during service. Service treatment records do not demonstrate any treatment for a heart condition during service, although they do show treatment for other maladies such as an ankle problem. A physical examination conducted at enlistment in September 1968 did not reveal a heart condition and a report of medical history completed at that time shows that the Veteran was in good health and had not experienced high blood pressure or shortness of breath. A separation physical examination conducted in January 1971 recorded no medical problems and an associated report of medical history reflects that the Veteran was in good health and again had not experienced any shortness of breath or high blood pressure. VA treatment records indicate that the Veteran was first diagnosed with peripheral vascular disease in August 2008. An echocardiograph performed in April 2010 revealed that the Veteran had a normal left ventricle with an ejection fraction greater than 55 percent. The atria was mildly dilated and no evidence of an atrial septal defect was found. Diastolic dysfunction was noted. VA treatment records are negative for a diagnosis of ischemic heart disease. The Veteran was provided a VA examination in April 2011. The examiner reviewed the claims file, the Veteran's 2010 echocardiograph, April 2011 EKG, and February 2011 chest X-rays. He also conducted an interview and examination of the Veteran. The examiner concluded that the Veteran did not have ischemic heart disease. The report indicates that the Veteran experiences chest pain, syncope, and dyspnea and was evaluated at an estimated MET level of greater than 3-5. Additionally the examiner found no evidence of congestive heart failure, myocardial infarction, bypass surgery, or coronary artery disease. While the Veteran contends that he has ischemic heart disease, the record is negative for any diagnosis. Specifically, an April 2011 VA examination revealed that the Veteran did not have ischemic heart disease. The examiner also found no evidence of coronary artery disease and based that opinion on the Veteran's normal cardiac catheterization in 2006 and ejection fraction of 55 percent found during the April 2010 echocardiograph. Furthermore, VA treatment notes from May 1998 to September 2011 contain no diagnosis of ischemic heart disease. Moreover, the Veteran's own representative in an informal hearing presentation submitted in August 2013 stated that there was no medical evidence showing a definitive diagnosis of ischemic heart disease. The Veteran is competent to report his observable symptoms of chest pain and shortness of breath. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a diagnosis of ischemic heart disease, the Board finds that the diagnosis and determination of etiology of such a disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. As such, the evidence in this case weighs against a finding that the Veteran has ischemic heart disease. As described, 38 C.F.R. § 3.309(e) Note 3 explicitly states that ischemic heart disease does not include peripheral vascular disease, which the Veteran is currently diagnosed with. Since the Veteran does not have a ischemic heart disease as described under 38 C.F.R. § 3.309(e), service connection on a presumptive basis is not warranted. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b), 1116 and 38 C.F.R. § 3.303. In this case, the Veteran claims that he has ischemic heart disease. He has also presumptively been exposed to herbicides during service and asserts that his exposure has caused his heart problems. However, the record is negative for competent evidence diagnosing him with ischemic heart disease. As discussed, the Veteran, as a layperson, is not competent to address distinctly medical questions requiring medical expertise. The diagnosis of a complex illness such as ischemic heart disease is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because the Veteran has not presented competent evidence demonstrating a diagnosis of ischemic heart disease, service connection may not be supported on the basis that herbicide exposure in fact caused his condition. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Nevertheless, even when a regulatory presumption of service connection for a given disability is not available, the claim must be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will also adjudicate the claim on a theory of direct entitlement to service connection for the Veteran's peripheral vascular disease. In order to establish service connection on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case the record is negative for a diagnosis of ischemic heart disease at any time. In the absence of proof of a disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A Veteran's belief that he is entitled to some sort of benefit simply because he had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. Service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). As discussed, the evidence does not demonstrate a diagnosis of ischemic heart disease at any point during the claim period. The Board is also cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." Again, the record does not reflect a diagnosis of ischemic heart disease at any point. The Veteran is competent to report any symptoms he has experienced, such as shortness of breath or chest pain, however, he is not competent to provide a complex medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, even though the Board finds the Veteran's complaints of his symptomatology to be credible, his lay testimony is simply not competent to establish the existence of ischemic heart disease. As such, the weight of the evidence is against a finding that the Veteran has ischemic heart disease and without a present disability service-connection is not warranted. See Shedden, 381 F.3d at 1167 (Fed. Cir. 2004). In sum, the evidence weighs against a finding that the Veteran has ischemic heart disease. Accordingly, the Veteran's claim for service connection for ischemic heart disease to include as due to herbicide exposure must be denied. ORDER Entitlement to service connection for ischemic heart disease to include as due to herbicide exposure is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs